Young v. Robertson

Cite as 2015 Ark. App. 681

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-418

TERESA CAMILLE YOUNG AND Opinion Delivered December 2, 2015
JAMES LYNN CARSON
APPELLANTS APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. 43CV-14-471]

HONORABLE SANDY HUCKABEE,
ELMER L. ROBERTSON, JACK JUDGE
BURGESS, AND AUTUMN BURGESS
APPELLEES AFFIRMED

BART F. VIRDEN, Judge

On September 25, 2014, appellants Teresa Young and James Carson filed a complaint

to establish an easement by prescription, necessity, or adverse use over land owned by

appellees Elmer Robertson, Jack Burgess, and Autumn Burgess. Appellants alleged that they

were landlocked in that there was no direct access and no reasonable means to access their

property without use of an existing fifty-foot ingress-and-egress easement. The Lonoke

County Circuit Court dismissed appellants’ complaint. On appeal, appellants argue that the

trial court erred in finding insufficient evidence to establish an easement by necessity.1 We

affirm.

I. Easement By Necessity

To establish an easement by necessity, a party must prove (1) that, at one time, one

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Appellants have abandoned their other claims.
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person held title to the tracts in question; (2) that unity of title was severed by conveyance

of one of the tracts; and (3) that the easement is necessary in order for the owner of the

dominant tenement to use his land, with the necessity existing both at the time of the

severance of title and at the time the easement is exercised. Horton v. Taylor, 2012 Ark. App.

469, 422 S.W.3d 202. What the petitioner must show is a reasonable necessity for a road, not

an absolute necessity. Attaway v. Davis, 288 Ark. 478, 707 S.W.2d 302 (1986). The degree

of necessity must be more than mere convenience. Horton, supra. Whether an easement is

necessary is a question of fact. Id. The supreme court has held that “necessary” means there

could be no other reasonable mode of enjoying the dominant tenement without the

easement. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987).

There is no dispute that the first and second requirements for an easement by necessity

have been met. The property in question was once a fifty-acre tract owned by Lanny R.

Pierce and Denise D. Clark, and the tract was severed by conveyance to the parties. The

north side of the fifty-acre tract runs along Bratton Road, a public road. Appellants own a

sideways J-shaped piece of land comprising the outer south and west sides of the tract,

approximately 1,142 feet on the north side, and approximately 518 feet on the east side. The

Wattensaw Bayou is located in the southwest corner of the tract. Robertson’s property is a

rectangular-shaped piece of land in the middle of the tract extending from the east side of the

tract and touching the top of the “J.” The Burgesses’ square-shaped piece of land adjoins

Robertson’s in the northeast corner of the fifty-acre tract. Appellants’ mobile home is located

in the southeast corner of the tract, or inside the top of the “J.” The existing easement,

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accessed from Bratton Road, runs along the east side of the fifty-acre tract and crosses the

land owned by the Burgesses and Robertson.

II. Hearing Testimony

At a hearing held on December 9, 2014, the testimony established that Young had

purchased thirty-five acres in May 2011 and that she and her boyfriend, Carson, lived in a

mobile home on the property. They accessed the property via a road that crossed appellees’

property. Young testified that, soon after she purchased the land, Robertson and Carson

began having “heated altercations” over use of the road. Young stated that Robertson had

not told her that she could not use the road but that he did install speed bumps in 2012.

Young testified that, although she had 1,142.60 feet of frontage where her property adjoined

Bratton Road, she could not access her property from there because the only dry area was

on Robertson’s property; however, Young conceded that she had never attempted to build

a road there. Young stated that she had built a levee near the western end of Robertson’s

property but that it had breached. She said that part of her property was designated wetlands

and that “you cannot get through there.” Young testified that there was no other existing

road and that she could not use her property if she had no access by way of the existing

easement.

Jim Wilkerson testified that he did not “have a dog in this hunt” but that he was

familiar with the fifty-acre tract because he had leased nearby property for twenty-six years.

He stated that his leased land was designated wetlands but that he used it for hunting. He

said, “You could build a road on [wetlands], but I wouldn’t.” After saying that it would be

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“almost impossible” to build a road because the land was too wet, Wilkerson opined that it

could take several hundred thousand dollars to build a road but that a road could be built “if

you had the right stuff to do it with.”

Scott Foster, a licensed land surveyor, testified that Wattensaw Bayou, designated as

Zone A, comprising both floodplain and floodway, covered a portion of appellants’ property.

He stated that a road could be constructed in a floodplain with proper permits but that

governmental regulations prohibited the building of a road through a floodway. He said, “A

road absolutely cannot be put across a floodway.”

Young was recalled to testify regarding a letter she had received from Roger Allen at

the Army Corps of Engineers. She said that Allen had been contacted by Robertson about

a possible violation for Young’s building a levee on the wetlands. Young testified that she

was told that the Corps had made “a preliminary jurisdictional determination” that a portion

of her land “may be considered . . . wetlands” and that she should contact the Corps before

doing any work. Young said that she concurred with the Corps’s determination, so she did

not respond to the letter. She did, however, speak with an employee at the Corps who

advised her that she could apply for a permit but that it would likely be denied. Young

stated, “I have not applied and am not going to.”

Elmer Robertson testified that he began having confrontations with Carson soon after

he and Young moved onto the land because of traffic. He stated that he had given appellants

permission to use the easement “to be neighborly” but that they had abused the road by

driving too fast, which resulted in potholes. Robertson, who works as a contractor, testified

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that he thought appellants could build a road if they had the resources. He further testified

that the portion of appellants’ property with frontage on Bratton Road could hold a trailer

at certain times of the year.

Jack Burgess testified that, since the appellants had moved onto the land, there was

“tons of traffic and they speed and they’re obnoxious.” He stated that the traffic was ruining

the road, which he believed would decrease the value of his property. Burgess stated that he

builds roads for a living and that it would cost appellants approximately $14,000 to $18,000

to build a road. Burgess further stated that appellants could enjoy their property if they were

willing to move their mobile home to the other side of the floodway and access the rest of

their property by four wheelers and trucks.

At the conclusion of the hearing, the trial court took the matter under advisement and

later entered an order dismissing appellants’ complaint because there was insufficient evidence

to establish an easement.

III. Appellants’ Arguments

Appellants reargue the testimony from the bench trial and conclude that, “[b]ased on

the uncontroverted testimony that the current road is the only way Appellants can access

their home, the rest of their land is in a zone A floodway, and that they are not allowed to

build a road over a zone A floodway on their land, the court erred when it dismissed their

complaint. The evidence was overwhelming that this easement was in deed [sic] necessary

to access their home and not a mere convenience.”

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IV. Standard of Review

We review equity cases de novo on the record and will not reverse a finding of fact

by the trial court unless it is clearly erroneous. Horton, supra. A decision is clearly erroneous

when, although there is evidence to support it, the reviewing court on the entire evidence

is left with a definite and firm conviction that a mistake has been committed. Sanford v.

Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). Disputed facts and determinations of witness

credibility are within the province of the fact-finder and, in reviewing a trial court’s findings,

we give due deference to that court’s superior position to determine the credibility of the

witnesses and the weight to be accorded to their testimony. Horton, supra.

V. Discussion

As a preliminary matter, appellants alleged in their complaint that, without the

easement, they cannot access their property and that they are landlocked. “Landlocked” is

a term applied to a piece of land belonging to one person and surrounded by land belonging

to other persons, so that it cannot be approached except over their land. Black’s Law

Dictionary, 878 (6th ed. 1990). Appellants’ property is not landlocked given that they have

over 1,142 feet of land adjacent to a public road. Also, although appellants—as well as

appellees—narrowly frame the issue on appeal as “whether the use of the roadway is

necessary to the Appellants’ use of their mobile home . . .,” the question is whether the

easement is “necessary in order for the owner of the dominant tenement to use his land.”

Horton, 2012 Ark. App. 469, at 7, 422 S.W.3d 202, 208. The parties do not provide any

authority to the contrary.

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Young testified that she had neither attempted to build a road nor applied for

permission to build a road because she thought her application would be denied. The letter

from the Army Corps of Engineers does not forbid appellants to build a road, and the

National Flood Insurance Programs regulations, which were introduced into evidence, do

not appear to prohibit the building of a road either. Appellees, who both worked in

construction, and Wilkerson testified that it was possible, albeit perhaps not the most

desirable option, to build a road from Bratton Road such that appellants could enjoy their

property. On the other hand, the testimony by appellants’ expert established that a road

absolutely cannot be built in a floodway. It was the trial court’s duty to determine credibility

and to weigh the conflicting testimony. Horton, supra.

The trial court could have concluded that alternate routes to access appellants’

property existed and that appellants had simply not explored those possibilities. Id. (holding

that possibility of another, although inconvenient, route to appellants’ property precluded

establishment of easement by necessity); Berry v. Moon, 2011 Ark. App. 781, 387 S.W.3d 306

(holding that possibility of another route to appellees’ backyard, including testimony by

appellee that there was at least one other possible route that had not been fully investigated,

precluded establishment of easement by necessity); Orr v. Orr, 2009 Ark. App. 578 (denying

easement by necessity where evidence was conflicting as to availability of alternative routes

to appellants’ properties and request appeared to be driven more by convenience than

necessity). Giving due deference to the trial court’s superior position to make credibility

determinations and weigh the evidence, we cannot say that the trial court clearly erred in

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determining that an easement was not necessary under these circumstances.

Affirmed.

KINARD and HOOFMAN , JJ., agree.

Chad M. Green, for appellants.

Baker, Schulze, Murphy & Patterson, by: J. G. “Gerry” Schulze, for appellees.

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